Australian Postal Commission v Cannon, J.D.

[1988] FCA 656

CATCHWORDS

Administrative Law - appeal from Administratlve Appeals

Tribunal - whether the disease "anxiety state" 1s a disease within Compensation (Commonwealth Government Employees) Act

1971 - whether the definition of disease extends to

symptoms of tension or stress which do not themselves amount to any medically recognlzed condltron or dlsabillty.

Administrative Appeals Tribunal Act 1975

Compensation (Commonwealth Government Employees) Act 1971 s.5, s.27, s.29

AUSTRALIAN POSTAL COMMISSION

and

JOHN DEIDRICH CANNON

NORTHROP J.

26 OCTOBER 1988

MELBOURNE

'LIMITED DISTKCBVPION'

IN THE FEDERAL COURT OF AUSTRALIA )

1

VICTORIA	D STRICT	REGISTRY	)	V. No. G.226 of 1988
)

GENERAL DIVISION	)
BETWEEN:

AUSTRALIAN POSTAL COMMISSION

Applicant

and

JOHN DEIDRICH CANNON

Respondent

COURT: NORTHROP J.

DATE: 26	OCTOBER 1988
PLACE:	MELBOURNE

EX-TENPORE REASONS FOR JUDGMENT

The applicant, the Australian Postal Commisslon,

brings this appeal under the provisions of the Administrative

Appeals Tribunal Act	1975 from a decision made	by a senior
member of the Tribunal on 2 June 1988.	The appeal is to the

original jurisdiction of this Court and is limited to

questions of law. In that respect, the appeal is not to be treated as an Ordinary type of appeal, but has a much more llmited effect.

The decision made by the Tribunal on 2 June 1988

- L -

was as follows:

"1. The Tribunal finds:

(a) that M r Cannon contracted the disease,

"anxiety state",

(b) that his employment was acontributing

factor to the contraction of that dlsease

(c) that total incapacity for work resulted from that disease

(i) from 29 October 1984 - 2 November 1984

(ii) from 16 April	1985 - 19 April	1985
(iii) from 24 June	1985 - 12 July	1985

(iv) from 11 November 1985 - 7 March	1986
(V) from 3 July	1986 - 1 November 1986
(d)	that accordingly the contraction of the
disease is deemed to be a personal injury
arising out of M r Cannon's employment by the Commonwealth, and
(e)	that 29 October 1984 is deemed to be the date of the injury."

Paragraphs 2 , 3 and 4 of the order a e

consequential orders which, in substance, directed the matter to be referred back to the Commissioner for Employees'

Compensation for determination in accordance	with	the
Tribunal's finding.

The applicant has appealed, as I said, from that

decision, and the questions of law raised for consideration
by this Court	a s set out in the notice of appeal are as
follows:

"THE QUESTIONS OF LAW raised on the appeal are:

( a ) Whether the drsease "anxiety state" is a disease within the definition of Section 5 ( 1 ) of the Compensation (Commonwealth Government Employees)

Act 1971.

(b)	Whether the definition of "disease" in Section
S ( 1) of the said Act extends to symptoms of

tension or stress whlch do not themselves amount

to any medically recognized condltlon or

dlsability."

In order to consider the matter, it IS necessary to

make a very brlef reference to the relevant provrsions of the

Compensation (Commonwealth Government Employees) Act 1971

("the Act"). Under s.29 of the Act, provision 1 s made in

substance that where an employee contracts a dlsease and any

employment of the employee by the Commonwealth was a

contributlng factor to the contractlon of the dlsease, then if the total or partial incapaclty for work of the employee results from the dlsease, then for the purposes of the Act the contractlon of the disease IS deemed to be a personal

injury to the employee arising out of the employment of the employee by the Commonwealth. The Act extends to certaln statutory bodies of the Commonwealth including the Australian

Postal Commisslon. Section 27 of the Act provides in

substance that if personal in~ury arising out of the employment of an employee by the Commonwealth is caused to an employee, the Commonwealth is llable to pay compensation in

words appearing in the Act, and unless the contrary intention	Sub-sectron 5(1) contains a number of meanings to be given to respect of that injury in accordance wlth the Act.
appears in the Act, the word "dlsease" is used as including any physical or mental allment, dlsorder, defect or morbid
conditlon, whether of sudden onset or gradual development.

It is in the context of that definition. that the

questions of law ralsed are to be considered. Counsel for
the applicant made reference to a large number of authoritles

in the High Court dealing with passages where reference is

made to the word "disease". But all those cases,	or	most of
them, seem to be cases rnvolvlng	ln~ury where there was	a
deflnitlon	of	disease in the relevant statute, mainly, New

South Wales Workers' Compensatlon Acts. But what is

apparent from those authorities, as well as from other

authorities, is that the word "dlsease" is to be given a very

wide meaning and it is noted that the deflnition contained in

the Act itself is expansive in form. It allows the word

"disease" to have its normal meaning, and in any event does

include those additional condltions which are contalned in

that definition. It is clear that a mental condltion or

mental illness is a disease.

Before dealing with those matters further,

reference should be made to the reasons for declsion by the
Tribunal. There was conflicting medlcal evidence as to the
condition of the respondent, and what its cause was. But in
paragraph 21 of the reasons for decislon, the Tribunal made

flnal conclusions of fact from that confllctlng evidence, and

I quote: 

"21. On the evldence of Or Nicholson, Or Slme and

Or Cole I find that M C Cannon suffered from an anxiety

state which was caused or at least contrlbuted to by

the stresses to whlch he was subjected at work from

late 1984 to 1986. The next question is therefore

whether the contraction of that anxiety state can be

regarded as the contraction of	a disease as deflned In
sub-s. 5(1) of the Act.	Is "anxiety state" a mental

ailment, disorder, defect or morbid condltion?"

The reasons of the Tribunal continued:-

" 2 2 . When the Tribunal attempted to explore the

concepts behind these terms with DC Hocklng (a medical practitioner called by the appllcant) he appeared to change his opinion, indicating at first that the terms were very different from the medical definition of disease, but then saying that he understood each of those terms to refer to actual psychiatric disease.
The Tribunal also asked DC Cole about the meaning of the terms "ailment, disorder, defect or morbld condltion". He considered that the term "disorder" could be used to describe an anxiety state which had the effect of rendering a person unable to go on

working. This use of the term "disorder" seems to be

consistent wlth that given in Blakiston's Gould Medical Dictionary, Fourth Edition, McGraw-Hill Book

Company, New York,1979, which is as follows:

"A disturbance or derangement of regular or normal physical or mental health or functlon."

2 3 .      Applying that deflnitlon of the term

"disorder", I am satisfied that Mr Cannon suffered

from a disease namely the mental disorder of anxlety

state to which his emulovment	contributed. Davies .l
in Westgate v Australian	?elecommunications Commission

(No. G257 of 1987, delivered 2 3 December 19871

("Westgate's Case") described the sort of employment contribution which is required to satlsfy the test laid down in the Act as follows:

"It was sufficient that the employment positively contributed to the development of the applicant's depression, that is to say that the employment provlded external stimulus to aggravate or accelerate his dlsease."

2 4 . In this matter it was sufficlent If the

employment positively contributed to the development	of Mr Cannon's anxiety state by provlding the external	stimulus which led to the contraction of the disease.
It is zrrelevant that Mr Cannon's personality was such that he was more llkely to develop anxiety state when placed under stress than were people of a dlfferent
personality structure.
2 5 . Davies J in Westgate's Case then went on to polnt out that it is necessary for an appllcant to prove not merely that his disease has been-contributed to by his employment but also that total or partlal incapacity for work resulted from the dlsease. I am satlsfied that In spite of, or perhaps even because
of, his personality structure Mr Cannon was able to
work efficiently in many different positions in the

Transport Division of Australia Post until late 1984.

From that time on he began to suffer from the symptoms already described. They developed as he was subjected

to further stress in his employment until they

represented	a	disturbance of his regular or normal
mental health	or function such that it resulted in

three short periods of incapacity for work in October
1984, April 1985 and June 1985 and a longer period of

incapacity for work from 8 November 1985 until March

1986. I therefore find that Mr Cannon contracted a

disease to which his employment contributed which

resulted in incapacity for work. Pursuant to	s.29 of
the Act that disease is deemed to be	a personal injury
under s . 2 7	of the Act."

That reasoning, on the face of it, appears to be

impeccable. But it was attacked by Mr Gunst on behalf of the

applicant on the ground that in reality what was said was the

disease was only the symptoms of something, symptoms of

anxiety which themselves were not a disease. And such

symptoms, of themselves, he contended, do not constitute	a
disease for the purposes of the Act.

It is very difficult to translate symptoms of an

injury to symptoms of	a disease. It is true that	a disease
is a	condition, including any physical	or mental ailment,
disorder, defect or morbid condition.	A mental illness is	a
disease. The symptoms from	a disease can be many.	M r Gunst

relied upon the propositions of law that a disease or injury
under the Act must be constituted by	a physiological change,

although it is difficult to see how all diseases,

particularly mental diseases, can be described as

physiological changes, including a functional Illness, a

mental	illness or an	illness	which	may	arise	from	some
personality	pre-disposition.	But	he	did	contend	that	the

mere symptoms of a pre-existing condition, of themselves, do

not and cannot constltute a disease. In particular, he

relied upon a recent judgment of the Federal Court of

Australia, constituted by Davies, Sheppard and Ryan	JJ given
on 14 July 1988. That decision is binding upon me but,	rn my
opinlon, it is not relevant	for present purposes. Here there
has been a	finding that the conditlon whlch was descrrbed as

an anxiety state was itself a disease. It was supported by

evrdence before the Tribunal that i t could be a disease and,

in those circumstances, although it may be said to be

symptoms as well, the findings of the Trlbunal must be

accepted. It is not for this Court, on questlons of law

which do not raise the issue, to consider whether the

Tribunal was correct in finding facts on the material before it for the purposes of the decision maklng processes by that Tribunal.

In my opinion there has been nothing put to me

which suggests that anxiety state cannot be	a disease. The
Tribunal has made that finding and	I see no error of law at
all in that finding.

The other question of law raised was whether the

definition	of	disease	extends	to	symptoms	of	tension	or
stress	whlch	do	not	themselves	amount	to	any	medrcally

recognized conditlon or disabillty. The evldence accepted by

the Tribunal was that the mental stress or anxlety state was

a disease and this is supported both by the normal meaning

given to the word dlsease as well as the extended meaning

given by the Act. As I said before, I can see nothing wrong

at all in the way the Tribunal applied the facts and the law

in the paragraphs which	I	have read from the reasons for
decision of the Tribunal.

In my opinion the applicant has not made out a case

and accordingly the appeal is dismissed with costs.

.

ATTACHMENT A

Title of Action	:	Australian Postal Commission	v
John Deidrich Cannon

File Number	: V. No. G.226 of 1988
Date of Hearing	: 26 October 1988
Judgment Delivered	: 26 October 1988
Counsel for Applicant	:  M C C. Gunst
Solicitors for Applicant	: Australian Government Solicitor
Counsel for Respondent	: M C R. Gillard Q.C. with

fir A. Moulds

Solicitors for Respondent	: Slater h Gordon
Signed	. .shClKNJ. .?. . UdXXU

Date 26 October 1988